Supervisory Responsibility

Responsibilities under the 1977 Federal Mine Safety and Health Act

Congress Declared

• First priority of the mining industry is the health and safety of the miner.

• Improve mining conditions.

• Establish mandatory standards requiring mine operators and miners to comply.

• Eliminate serious injury and death in the mining industry.

Federal Mine Safety and Health Act of 1977 Definitions

• Miner - any individual who works in a mine.

• Operator - any owner, lessee or other person who operates, controls or supervises a mine, OR– Any independent contractor performing

services or construction at a mine. Contractors account for 30-35% of all mining fatalities.

Contractor Responsibilities

• Must comply with the Mine Act.– Will be issued citations for violations of

mandatory health and safety standards.

• Must ensure the actions of their employees do not create hazards for the mine operator’s employees as well as their own employees.

• Monitor their employees and their activities.

Operator’s Responsibilities Regarding Contractors

• Specify rigid requirements in contracts with contractors to control the contractor’s behavior.

• Monitor the contractor’s activities while on operator’s property.

• Ensuring contractor is aware of and enforces MSHA’s regulations.

• May also receive citations/orders for contractor violations.

What Is An “Agent”

• ANY person charged with responsibility for the operator of all or part of a mine…

• Are you a supervisor, a leadman, foreman, superintendent, etc.?

• If yes to any of the above, you are an AGENT. Are you aware of your responsibilities under the mine act?

• Are you aware of the potential consequences of ignoring them?

–Listen up!!!

AN ACTLevels of Enforcement

• Section 103• A) mandatory minimum of 4 & 2

inspections per year.

• D) all accidents investigated by operator.

• F) right of the miner to have representation on an inspection.

• G) right to request an immediate inspection.

• Section 104• (A) - citations shall be issued for

violations

• (B) - non-compliance orders

• (D)(1) - unwarrantable failure citation

• (D)(1) - unwarrantable failure order(s)

• (D)(2) - unwarrantable failure order(s)

• (G)(1) - untrained miner withdrawn from the mine.

• (G)(2) - no discrimination or loss of pay because of withdrawal.

Significant AndSubstantial (S&S)

• What makes a violation S&S?– Gravity (section 10 of citation/order)

• If a condition is left unabated, what is the likelihood it would result in an injury, and

• If there was an injury, how serious would it be?

• For a violation to be S&S, there must be a reasonable likelihood that an injury will occur and the injury would result in lost workdays or restricted duty.

S&S Defined

• “…A violation is of such nature as could significantly and substantially contribute to the cause and effect of a mine safety and health hazard if…based upon the…facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.”

How Is Operator Negligence Determined?

• Negligence is failure to exercise the degree of care or diligence you would reasonably expect from a prudent person…in a position of responsibility.– There are some types of violative conditions

that are more hazardous than others and require a higher degree of care…

– So…..

• No negligence - operator exercised diligence and could not have known of the violative condition or practice,

• Low neg - operator knew or should have known, but there were considerable mitigating circumstances.

• Moderate neg - …knew or should have known, but there was some mitigation.

• High neg - …knew or should have known with no mitigation

• Reckless disregard - operator displayed conduct showing absence of even the slightest degree of care.

Unwarrantable Failure

• Unwarrantability is a negligence determination.

• Factors caused by a high degree of negligence or reckless disregard should be evaluated for an unwarrantable failure to comply.

Factors Address By Inspector

Amount of time violative condition existed.Hazard was serious warranting increased

attention by the operator.Violation was repetitious of a previous

violation.Violation was the result of deliberate

activity, or the operator had knowledge or reason to know.

Commission Definition

• “Unwarrantable” is defined as: not justifiable, inexcusable.

• Conduct that is not justifiable and is inexcusable is the result of more than:– Inadvertence, thoughtlessness, or

inattention.

• “Failure” is defined as “neglect of an assigned, expected, or appropriate action.”

Section 107(a)

• Imminent danger order*Too hazardous to continue

operations without the possibility of something occurring and,

*Requires immediate action

SECTION 105(a)

• This section gives MSHA the ability to assess a proposed penalty for violations.

Penalties

• Fines range from $55 to $55,000 for violations of safety and health standards.

• Smoking violations - $275

• Working in the face of order - $5,500 per day.

Penalties (Con’t)

• Minimum penalty $55 for non S&S citation

• Assessment for S&S violations determined by:– Gravity (likelihood and severity)– Negligence– History of violations– Size of company– Operator’s “good faith” at abatement– Final assessment based on ability to pay.

Purpose Of Section 110

• In enacting the MSHA ACT, congress recognized that strict civil and criminal penalties for violations were necessary to ensure that the health and safety standards would be met…therefore, congress expressly imposed civil and criminal penalties on both the mine operator and AGENTS of corporate mine operators. This is the highest level of enforcement action.

110 (c) - CIVIL

• If a corporate operator violates a mandatory standard or knowingly fails to comply with any order.

• Any director, officer, or agent who knowingly authorized, ordered, or carried out such violation, shall be subject to civil penalties, fines and imprisonment as in 110(a) and (d)– ($55,000/vio or $250,000 & 1yr in prison or both)

SECTION 110(c)

• In reference to section 110(c), “knowingly has been defined as:– …Knowing or having reason to know. A person

has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence. MSHA must show a preponderance of evidence existed. A civil penalty may be proposed against an officer, director or agent of a corporation.

SECTION 110(d)

• In reference to 110(d) of the act, “willfully” has been defined as:

• …Done knowingly and purposely by a [person] who, having a free will and choice, either intentionally disobeys the standard or recklessly disregards its requirements.

• Government must establish beyond a reasonable doubt that ANY operator willfully violated any mandatory health or safety standard or other provision of the act.

• The fourth circuit court of appeals has defined reckless disregard as:

• The closing of the eyes to OR deliberate indifference toward the requirements of a mandatory safety standard, which standard defendant should have known and had reason to know at the time of the violation.

Who Can Be Charged??

• A few examples are:– Supervisors/foremen/leadmen– Superintendents– Managers– Engineers– Owners/partners– Manufacturers– Vendors – Contractors

Other Section 110 Violations

• 110(e) - any person notifying an operator of impending inspection

• 110(f) - false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained by the ACT.– (Includes falsification of a 5000-23 training certificate.)

SECTION 110(f)

• This section makes it a felony to knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under the mine act. The penalty for a violation of this provision is a fine of up to $250,000 and not more than five years in prison.

• This provision applies to ANYONE.

• Whoever makes a false statement - Person making the false statement does not have to be an officer, agent, director, operator, miner, or even an employee at the mine.

– Typically arises in the context of falsified training certificates, where the trainer certifies proper training has been given, when in fact, it has not (Part 46 & Part 48)

110 VIOLATIONS (Con’t)

• 110(g) - miner willfully smoking or carrying smoking materials.

• 110(h) knowingly distributes, sells, offers, induces, or delivers in commerce any equipment for use in a mine, including components and accessories, which is represented as complying with the ACT but does not.

Violations Reviewed For Possible 110 Action

• 107(a) order with 104(a) citation – condition or practice in a mine which could

reasonably be expected to cause death or serious injury before it can be abated.)

• 104(d) citations or orders with a high degree of negligence and evaluated as S&S (high degree of risk).

REVIEW (Con’t)

• Operator working against an order.

• District manager prerogative– The district manager has authority to

open an investigation into anything he/she deems necessary.

Factors To Consider For Further 110 Action

• Was there a violation of a mandatory, health and safety standard and was it properly cited

• Was there a high degree of risk to the health and/or safety of the miner

• Did the operator or agent have knowledge or reason to know about the facts or conditions of the violation.

Who Does The Reviews

• INSPECTOR/SUPERVISOR – inspector completes “possible knowing/willful

review form.”

• SUPERVISORY SPECIAL INVESTIGATOR – researches, makes recommendations.

• ASSISTANT DISTRICT MANAGER

– reviews and agrees or disagrees.• DISTRICT MANAGER

– makes final decision whether to investigate or not.

Special Investigation

• If a determination is made to investigate, the case will be assigned to a special investigator.

• The investigator will conduct thorough interviews with employees and members of management to determine if there has been a violation of section 110(c) or 110(d).

After The Investigation

- After investigation, writes report of facts and recommends to district manager, knowing, willful, or no further action.

- Case forward to headquarters where it is reviewed.

- Case forward to MSHA solicitors. - Solicitors complete legal analysis and make

recommendation to administrator.

5 - Administrator finalizes review and district instructed to hold health and safety conference or instructs appropriate officials to make referral to DOJ.

6 - District manager conducts health and safety conference with person charged.

7 - District manager makes decision and prepares final letter of action to be sent to MSHA assessments group.

8 - Assessments sends fine to agent/agents.

Avoiding Investigation

• Educate all levels of management of their responsibilities.

• Train everyone in hazard recognition.

• Establish procedures for correcting hazards.

• Know the law, regulations, and your rights.

Two Important RegulationsMetal/Nonmetal

• 30 CFR 56.14100 -

– (a) equipment checks

– (b) correcting defects

– (c) take defective equip out of service

– (d) record the defects • 30 CFR 56.18002 -

– (a) competent person examines workplaces for safety hazards

– (b) record examinations– (c) imminent dangers noted by person checking for hazards

shall be acted on by operator and withdraw persons until corrected.

SECTION 105(c) MINERS’ RIGHTS

• What is protected activity?– Rights afforded to the miners by the mine safety and

health act.

• When a miner is treated adversely for engaging in a protected activity..– The miner has the right to file a discrimination

complaint with MSHA.

Protected Activities

• Include but not limited to:– Represented on federal inspections– File or make a complaint of an alleged danger

or safety or health violation.– Institute any proceeding under the act (e.g.,

Filing a complaint pursuant to section 111) – Refuse to work in unsafe or unhealthy

conditions (good faith belief)– Enforcement of safety training of section

104(g) and section 115 of the mine act.

Discriminatory Acts• Discharge or termination• Laying off• Demotion• Refusal of employment• Reduction in benefits, vacation, bonuses, or rates of pay• Changes of pay and hours of work• Subtle forms of interference, such as promises of

benefit or threats of reprisal• Interference with statutory rights• Transfer to another position at less pay

The More Informed You Are...

• The more time spent understanding the mine act and the safety and health regulations, the better equipped you will be to train employees, prevent accidents, and to take care of hazards before an inspector observes them and issues citations. This will make you better supervisors and managers.